SZJNS v Minister for Immigration

[2007] FMCA 219

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJNS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 219

MIGRATION – RRT decision – application to Tribunal made out of time – Tribunal correctly found no jurisdiction – absence of actual notice of delegate’s decision is immaterial.

Migration Act 1958 (Cth), ss.412(1)(b), 414(1), 476, Pt.7

Migration Regulations 1994 (Cth), reg.4.31(2)(b)

Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629
Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550
SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485
VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570

Applicant: SZJNS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3011 of 2006

Judgment of: Smith FM

Hearing date: 13 February 2007

Delivered at: Sydney

Delivered on: 13 February 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms Z McDonald

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $3,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3011 of 2006

SZJNS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 17 October 2006, which was set down for a final hearing today on whether the applicant is entitled to relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) to compel the Refugee Review Tribunal (“the Tribunal”) to exercise jurisdiction under Part 7 of the Migration Act to review a decision made by a delegate on 2 March 2006. The delegate refused the applicant’s application for a protection visa, which had been lodged on 20 December 2005.

2. In a decision dated 5 September 2006, the Tribunal explained why it considered that the applicant’s application for review received on 10 June 2006 was an invalid application for the purposes of s.414(1) due to its being out of time under s.412(1)(b) and reg.4.31(2)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”).  The Tribunal set out the relevant legislation and clearly explained its effect, and it is unnecessary for me to repeat this. 

3. In short, the applicant had 28 days to lodge his application after being deemed to have received notice of the delegate’s decision. The provisions of the Migration Act and Regulations cited by the Tribunal deemed the applicant to have received notice of the delegate’s decision seven working days after the date of the letter, if it was duly despatched within three days of that date. There was evidence before the Tribunal, and now before me, showing that it was duly despatched, so that the deeming provisions therefore applied.

4. The Tribunal’s opinion that the deeming provisions were conclusive has the clear support of authority (see Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 and SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485). It is also established that the 28 day time limit is mandatory and cannot be extended by the Tribunal or the Court (see Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407, VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 at [33], Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 at [24], and other authorities which are cited in those cases).

5. The applicant did not contest before the Tribunal, nor before this Court, that the delegate’s notification letter was duly despatched by post.  Nor has he denied that it was actually delivered to the address for service at Auburn which he had nominated in his visa application.  He presented to the Tribunal an unsworn statement by a person, who he says was his elderly landlord at the Auburn address.  This typed document states: 

   I recall in around late March this year, I received a registered letter addressed to [the applicant].  But somehow I forgot passing this letter to [the applicant], because [the applicant] left our house very early in the morning and came back very late at night, working in a factory.  And sometime I did not have chance to see him at all for a few days. 

   I am 73 year old man and my memory is getting worse.  I feel very sorry for all the inconvenience caused. 

6. The letter is signed by a person with an Anglo Saxon name.  No sworn evidence from that witness has been tendered.  The Tribunal said that it considered “that this letter is unlikely to be genuine”, and I share these doubts by reason of its syntax and expression. However, I do not have to decide whether the letter’s contents are true since, as I have indicated, even if the applicant did not receive actual notice of the delegate’s decision, the provisions of the Migration Act are strict and cannot be overlooked or ameliorated.

7. In my opinion, the Tribunal correctly held that it did not have jurisdiction for the reasons which it gave.  I therefore do not consider that the applicant has made out an entitlement to a writ of mandamus to compel the Tribunal to proceed with the hearing and determination of his application for review.  He is not entitled to a writ of certiorari to quash its decision declining jurisdiction. 

8. In my opinion his application should be dismissed. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  28 February 2007